Can self-represented litigants get costs?

Introduction

One of the benefits of winning in family litigation is that you will typically get some of your legal costs back presuming you behaved reasonably throughout the proceedings. But “legal costs” presupposes a legal representative was involved. What happens if there was no lawyer involved, you represented yourself and you were the successful party at a court proceeding such as trial? The short answer is that in Rule 24 of the Family Law Rules, “any legal fees” is only one consideration among many in “setting the costs amount.” Costs awards are therefore possible whether or not a lawyer is involved.

Costs generally

In a recent Ontario Superior Court decision, Justice Pazaratz reiterated the general costs principles coming out of the Ontario Court of Appeal decision of Serra v. Serra, 2009 ONCA 395. Costs rules are designed to foster three important principles:

a. To partially indemnify successful litigants for the cost of litigation.

b. To encourage settlement; and,

c. To discourage and sanction inappropriate behaviour by litigants

Justice Pazaratz continues, Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met, that cases are dealt with justly (this provision needs to be read in conjunction with Rule 24 of the Rules). Some of the relevant costs arguments are found in an earlier post.

Considerations for self-reps

The recent Ontario Superior Court case, M.A.L. v. R.H.M., 2018 ONSC 2542, summarizes the main principles regarding successful self-reps getting costs:

a. Self-represented litigants may be awarded costs, and those costs may include an allowance for counsel fees. Fong v. Chan, 1999 CanLII 2052 (ON CA), (1999) 46 O.R. (3d) 330 (C.A.); Jordan v Stewart, 2013 ONSC 5037 (SCJ).

b. However, self-represented litigants – whether legally trained – are not entitled to costs calculated on the same basis as those of a litigant who retains counsel. Pirani v Esmail, 2014 ONCA 279 (ON CA); Fong v. Chan, (supra); Reynolds v. Higuchi, 2014 ONSC 3375 (SCJ).

c. A self-represented litigant can be awarded costs for disbursements as well as the economic loss caused by having to prepare and appear to argue the case. Fong v. Chan (supra); G.B. v S.A., 2013 ONSC 2147 (Divisional Ct).

d. A self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case.

e. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity. Jordan v Stewart, (supra).

f. Lost wages as a result of time missed from work to prepare for or argue a case can be compensated by way of costs. G.B. v S.A., (supra). But this excludes routine awards on a per diem basis to litigants who would ordinarily be in attendance at court in any event. Warsh v Warsh, 2013 ONSC 1886 (SCJ).

g. Compensation for the loss of time devoted to preparing and presenting the case should be moderate or reasonable. Reynolds v. Higuchi, (supra).

h. Once a court determines that a “counsel fee” is appropriate for a self-represented litigant, one of the biggest challenges is quantifying both the number of hours to be compensated and the appropriate hourly rate. Courts have awarded anywhere between $20.00 and $200.00 per hour for self-represented litigants, depending on the demonstrated level of skill. Izyuk v Bilousov, 2011 ONSC 7476 (SCJ). $60 per hour appears to be a commonly used figure. Roach v. Lashley, 2018 ONSC 2086 (SCJ).

i. The Family Law Rules do not specifically address costs claims by self-represented litigants. But all of the Rule 18 and 24 costs provisions apply equally whether litigants are represented or not.

Application of principles

These principles were recently applied in Cuthbert v. Nolis, 2022 ONSC 3002 where the Applicant, a self-employed consultant, was granted an $86.70 hourly fee, which was calculated based off his self-employed hourly rate. The court said at paragraph 19: “I also find the applicant’s rate of $86.67 per hour to be reasonable and, while I do not have a letter from a third party confirming that the applicant had opportunity costs, I find based on the applicant’s costs submissions, and the information gleaned at trial, that his requested hourly rate is reasonable.”

In Curthbert, the Applicant was seeking costs for various proceedings including a trial that he won. The court found that he should be reimbursed for most of the hours he spent for the trial:

The applicant is entitled to his costs in respect of the trial. While I find the 90 hours he has requested somewhat excessive, I believe that 70 hours is a more realistic number. Given that there were 7 days of trial, I find that 10 hours of preparation for each trial day is not unreasonable. This was in respect of activity performed by the applicant that would be work ordinarily done by a lawyer and, as a result, the applicant incurred an opportunity cost by foregoing remunerative activity.

Conclusion

Costs awards are potentially available to successful litigants whether the party was self-represented or represented by a lawyer. This does not mean costs are guaranteed. The case law shows that self-represented litigants will likely not get the same level of costs as would a party with a lawyer. For more blog posts click here.